Document Content

DECISION

Promulgating the Regulation on provision and management of Government guarantees for foreign loans

THE PRIME MINISTER

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the Government's Decree No. 77/2003/ND-CP of July 1, 2003, defining the functions, tasks, powers and organizational structure of the Finance Ministry;

Pursuant to the Government's Decree No. 134/2005/ND-CP of November 1, 2005, promulgating the Regulation on management of foreign borrowing and foreign debt payment;

At the proposal of the Finance Minister,

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on provision and management of Government guarantees for foreign loans.

Article 2.- This Decision takes effect 15 days after its publication in "CONG BAO." It replaces the Prime Minister's Decision No. 233/1999/QD-TTg of December 20, 1999, promulgating the Regulation on Government guarantees for foreign loans of enterprises and credit institutions.

Article 3.- The Finance Minister, the Governor of the State Bank of Vietnam and the Planning and Investment Minister shall implement and guide and inspect the implementation of the Regulation on provision and management of Government guarantees for foreign loans promulgated together with this Decision.

Article 4.- Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of People's Committees of provinces or centrally run cities shall implement this Decision.

Prime Minister

NGUYEN TAN DUNG

REGULATION ON PROVISION AND MANAGEMENT OF GOVERNMENT GUARANTEES FOR FOREIGN LOANS

(Promulgated together with the Prime Minister's Decision No. 272/2006/QD-TTg of November 28, 2006)

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Regulation provides for the procedures for considering and providing Government guarantees; organization of management of Government guarantees and responsibilities of agencies for providing and managing Government guarantees.

Article 2.- Interpretation of terms

The terms below are construed as follows:

1. Government guarantee for a foreign loan (hereinafter referred to as Government guarantee) means a written commitment made by the Government of the Socialist Republic of Vietnam (the guarantor) through the Finance Ministry toward a foreign lender (the guarantee) to secure the performance of payment obligations already committed in a loan agreement. If the borrower fails to perform or fails to perform fully and in time payment obligations already committed in the loan agreement, the guarantor shall perform those payment obligations on the guaranteed's behalf under a letter of guarantee. The borrower is obliged to refund the guarantor the money amount paid by the latter on the former's behalf plus the interest and all expenses actually arising in relation to that amount.

2. Government guarantee-providing agency means the Finance Ministry (hereinafter referred to as the guarantee-providing agency).

3. Guaranteed means an enterprise that borrows foreign loans (the borrower) guaranteed by the Government. The guaranteed also implies the borrower's lawful assignee(s) or transferee(s) accepted by the guarantor.

4. Guarantee means a party that has the ownership right over part or whole of a guaranteed loan. The guarantee is the lender and its lawful assignee(s) or transferee(s) that are referred to as the lender in loan agreements.

5. Assignee of the guaranteed or the guarantee means a party that takes up the whole or part of the rights and obligations of the guaranteed or the guarantee in the assignment.

6. Transferee of the guaranteed or the guarantee means a party that takes up the whole or part of the rights and obligations of the guaranteed or the guarantee in the transfer.

7. Payment obligation means payable amounts, including loan principal and interest under a contract, interest on delayed payment, charges and expenses, damages (if any) according to the terms of a specific loan agreement and accepted in the letter of guarantee.

8. Representative receiving legal proceedings dossiers means a foreign-based Vietnamese representative office authorized to receive and certify the receipt of legal proceedings dossiers related to Government guarantees and forward all those dossiers to the guarantee-providing agency.

9. Legal opinion means a document issued by the Finance Ministry in compliance with regulations of Vietnam and international financial and credit practice on legal grounds of commercial, investment, financial and banking transactions conducted under Vietnamese law, international treaties or agreements, contracts involving foreign parties and other legal documents.

Article 3.- Government guarantees are those guarantees of the highest legality in Vietnam. A Government guarantee commitment is established in the form of letter of guarantee or guarantee contract (hereinafter collectively referred to as letter of guarantee).

The Government provides only guarantees, not re-guarantees.

Chapter II

RESPONSIBILITIES OF AGENCIES FOR PROVIDING GOVERNMENT GUARANTEES

Article 4.- Responsibilities of the guarantee-providing agency

The Finance Ministry, as the Government guarantee-providing agency, has the following responsibilities:

1. To promulgate and guide procedures for considering, providing and managing Government guarantees;

2. To examine financial plans and conditions for provision of guarantees according to dossiers of application for guarantees for specific programs or projects, and submit them to the Government for decision on guarantee.

3. To participate in negotiations on loan agreements in terms of borrowing conditions, and assume the prime responsibility for negotiations on contents of letters of guarantee;

4. To directly provide Government guarantees and organize the management of Government-guaranteed foreign loans as for Government foreign loans as provided for in Article 6, Clause 1, Item g of the Government's Decree No. 134/2005/ND-CP of November 1, 2005, promulgating the Regulation on management of foreign borrowing and foreign debt payment;

5. To sum up credit institutions' loans which require Government guarantees and are examined and proposed by the State Bank of Vietnam (hereinafter referred to as the State Bank) to the Prime Minister for decision;

6. To set limits of Government guarantees for being integrated with limits of the Government's annual commercial loans;

7. To assess the performance of Government guarantees and report on disbursement, payment of foreign debts and foreign debt balance of Government-guaranteed loans according to the Regulation on collection, reporting, summing up, sharing and publication of information on foreign debts;

8. To fulfil the obligations of the guarantor toward guarantees (foreign lenders);

9. To apply financial tools and coercive measures provided by law to claim debt amounts and expenses arising in relation to the debt payment on the guaranteed's behalf;

10. To inspect the results of business operation and use of foreign loans in order to supervise the guaranteed's debt payment capability.

Article 5.- Responsibilities of coordinating agencies

1. The State Bank has the following responsibilities:

a/ To examine and send credit institutions' borrowing plans to the guarantee-providing agency for subsequent submission to the Prime Minister for decision on guarantee provision;

b/ To certify the registration of Government-guaranteed foreign loans;

c/ To coordinate with the guarantee-providing agency in inspecting the use of loans and supervising the payment of foreign debts of projects examined by the State Bank;

d/ To closely coordinate with the guarantee-providing agency in creating conditions for the guarantee-providing agency to discharge its responsibilities toward the guaranteed.

2. The Justice Ministry:

a/ To contribute opinions on legal matters in loan agreements and Government guarantee agreements before they are submitted to the Prime Minister for decision; to contribute opinions, when necessary, on other legal matters concerning documents on borrowing of foreign loans and payment of foreign debts of domestic enterprises and economic organizations at the request of borrowers and the guarantee-providing agency;

b/ To examine matters in agreements on borrowing of foreign loans and payment of foreign debts of the Government, which are inconsistent with domestic law;

c/ To give legal opinions on loan agreements, letters of guarantee, the guarantor and the guaranteed.

3. The Foreign Affairs Ministry shall coordinate with the guarantee-providing agency in designating appropriate overseas Vietnamese representations to be authorized to receive legal proceedings dossiers related to Government guarantees and forward all those dossiers to the guarantee-providing agency in cases legal procedures agreed upon in loan agreements and letters of guarantees are court procedures.

4. Other concerned agencies shall coordinate with the guarantee-providing agency in performing the state management of foreign borrowing and foreign debt payment within the ambit of their functions and powers and in accordance with this Regulation.

Chapter III

OBJECTS, SCOPE AND CONDITIONS FOR CONSIDERATION AND PROVISION OF GOVERNMENT GUARANTEES

Article 6.- Objects entitled to guarantees

Objects to be considered for provision of Government guarantees (the guaranteed) include domestic enterprises, economic organizations and credit institutions of all economic sectors that directly sign loan agreements with foreign lenders to borrow capital by mode of self-borrowing and accountability for debt payment for execution of investment or credit programs or projects and fully satisfy the conditions specified in Article 8 of this Regulation.

Article 7.- Types of programs or projects borrowing foreign loans which are considered for provision of guarantees

1. Key investment programs or projects for which investment policies have been approved by the National Assembly or the Prime Minister.

2. Programs or projects which involve the import of hi-tech equipment for production of export goods or provision of export services, and those in domains prioritized for the State investment and capable of paying debts.

3. Programs or projects funded with commercial loans which, together with ODA source, constitute a funding source in form of syndicated credit.

4. Programs or projects borrowing credit institutions' loans examined and proposed by the State Bank for Government guarantees.

Article 8.- Conditions for provision of guarantees

1. Conditions on programs or projects:

a/ Programs or projects borrowing capital must have financial plans examined and determined by the guarantee-providing agency as being efficient and capable of paying debts;

b/ Programs or projects borrowing capital from credit institutions must have financial plans examined by the State Bank, which requests the guarantee-providing agency to submit those programs or projects to the Prime Minister for decision on provision of guarantees;

c/ They are approved by the Prime Minister for guarantees.

2. Conditions on borrowers:

a/ Ensuring that at least 20% of the total investment capital for each program or project is the own capital;

b/ Having complete dossiers of application for Government guarantees according to the provisions of Article 9 of this Regulation;

c/ Having conducted normal business activities without a loss for the last three consecutive years and being currently free from overdue domestic and foreign debts;

d/ Agreeing with the guarantee charge rate specified in Article 14 of this Regulation;

e/ Submitting to sanctions imposed by the guarantee-providing agency, including the freezing of accounts to coerce the compensation for financial obligations performed by the guarantee-providing agency on their behalf.

3. Conditions on a loan:

a/ Its value lies within the total annual limit of foreign commercial loans of enterprises or organizations of the public sector and the forecast borrowing level of the private sector approved by the Prime Minister;

b/ It is valued at least USD 10 million, except for loans for programs or projects specified in Clause 3, Article 7 of this Regulation;

c/ Its term is at least 10 years;

d/ Its currency is a freely convertible one;

e/ Its interest rate, charges and expenses are suitable with the present conditions of the international market;

f/ Terms of the loan agreement are compliant with Vietnamese law and international practice.

Article 9.- Dossiers of application for guarantees

A dossier of application for guarantee to be submitted to the guarantee-providing agency comprises:

1. The foreign lender’s official request for Government guarantee and the borrower's official request;

2. Documents on the legal status and brief operation history of the enterprise being the investor;

3. Investment decision accompanied with the project dossier according to current regulations;

4. Financial plan proving the capability to repay the loan, clearly identifying (i) the investment capital source (including own capital and borrowed capital); (ii) feasibility of the loan in terms of borrowing conditions; and (iii) the project's capability to repay the loan;

5. The lender's offers, enclosed with the draft loan agreement;

6. Financial statements for the latest three years, which have been audited or certified by a competent agency. For enterprises that have operated for less than three years, the financial statements of their parent companies or of companies being their strategic shareholders and the written commitments of their managing agencies or parent companies or strategic shareholders to assure their debt payment capability are required;

7. Written commitment to pay the guarantee charge at the rate set by the guarantee-providing agency.

Article 10.- Guarantee level

1. Guarantee level must not exceed 80% of the total investment capital of a program or a project, including insurance premium and loan interest during the construction process;

2. Guarantee level must lie within the annual guarantee limit calculated by the Finance Ministry based on the annual limit of foreign commercial loans of enterprises or organizations of the public sector and the forecast of the annual foreign loans of the private sector approved by the Prime Minister.

Chapter IV

GOVERNMENT GUARANTEE-PROVIDING ORDER AND PROCEDURES

Article 11.- Order of considering the provision of guarantees

The provision of Government guarantees is considered in the following order:

1. Examination of the project's financial plan and debt payment capability

Within 30 working days after receiving a complete and valid dossier of application for guarantee from the borrower, the guarantee-providing agency shall examine the financial plan according to the set conditions and the dossier of guarantee application through the following steps:

a/ Examination of objects and type of the project, ensuring that the conditions specified in Articles 6 and 7 of this Regulation are met;

b/ Examination of the project's financial plan and debt payment capability. Methods of examination are specified in Appendix I to this Regulation;

c/ Reporting, after examination, the examined contents to the Prime Minister for decision.

Particularly, enterprises being credit institutions with programs or projects borrowing foreign loans shall make financial plans for examination by the State Bank. Within 30 working days, the State Bank shall organize the examination of those financial plans and send its official letters together with examination reports to the guarantee-providing agency. Within 10 working days after receiving guarantee proposals of the State Bank, the guarantee-providing agency shall submit those proposals to the Prime Minister for consideration and decision on provision of Government guarantees for loans.

2. Approval by the Prime Minister

After receiving a written proposal of the guarantee-providing agency, the Government Office shall submit it to the Prime Minister for issuance of a decision to approve or refuse the guarantee, which serves as a basis for the guarantee-providing agency, the investor and concerned agencies to realize the guarantee.

3. Negotiation on contents of the loan agreement, the letter of guarantee and legal opinions

a/ After obtaining the Prime Minister's decision on provision of Government guarantees, the guaranteed shall conduct negotiations on the loan agreement, with the participation of the guarantee-providing agency and the Justice Ministry. Within three working days before conducting negotiations on the loan agreement, the guaranteed shall supply the guarantee-providing agency and the Justice Ministry with the following documents: the draft loan agreement; the signed commercial contract (for EPC investment projects); the draft letter of guarantee and legal opinions;

The guarantee-providing agency shall assume the prime responsibility for the negotiation on contents of the letter of guarantee, while the Justice Ministry shall assume the prime responsibility for the negotiation on contents of legal opinions. After being agreed upon, the contents of the letter of guarantee must be submitted by the guarantee-providing agency to the Prime Minister for approval.

b/ Signing of the loan agreement: After negotiations on contents of the loan agreement are completed, the guaranteed shall submit these contents to the competent authority for approval and proceed with the signing of the loan agreement;

c/ Completion of the guarantee provision dossier: After the loan agreement is signed, the guaranteed shall supply the guarantee-providing agency with the signed loan agreement and a written commitment certified by the managing agency (if any), made according to a set form, for completion of the guarantee dossier.

4. Approval by the Prime Minister:

After receiving the report from the guarantee-providing agency, the Government Office shall propose the Prime Minister:

a/ To approve contents of the letter of guarantee and assign the Finance Ministry to provide guarantees;

b/ To assign the Justice Ministry to give legal opinions on the loan agreement, the letter of guarantee, the guarantor and the guaranteed;

c/ To assign the Foreign Affairs Ministry to coordinate with the guarantee-providing agency in designating an appropriate overseas Vietnamese representation to be authorized to act as the recipient of procedural dossiers if the agreed legal procedures are court procedures.

5. Issuance of the letter of guarantee, giving of legal opinions and registration of the loan

a/ Issuance of the letter of guarantee: Within 10 working days after the guarantee provision dossier is completed, the guarantee-providing agency shall issue the letter of guarantee in four (4) originals, of which one shall be kept by the guarantee-providing agency in the dossier, one kept by the guaranteed, one kept by the Justice Ministry and one sent to the lender through the guaranteed. At the same time, the guarantee-providing agency shall send the Justice Ministry an official letter enclosed with the official letter of guarantee already deposited at the Justice Ministry so that the latter can give its legal opinions on the contents already decided by the Prime Minister;

b/ Registration of the loan: After the letter of guarantee is issued, the guaranteed shall register the loan with the State Bank according to the provisions of Article 6 of Decree No. 134/2005/ND-CP of November 1, 2005, promulgating the Regulation on management of foreign borrowing and foreign debt payment;

c/ Certification of the recipient of the procedural dossier: If the legal procedures specified in the loan agreement and the letter of guarantee are court procedures, the guarantee-providing agency shall coordinate with the Foreign Affairs Ministry in designating an appropriate overseas Vietnamese representation to act as the recipient of the procedural dossier for the guaranteed and the guarantee-providing agency;

Basing itself on the consent of the Foreign Affairs Ministry and the request enclosed with the authorization form of the guarantee-providing agency, the authorized Vietnamese representation shall sign for certification a written agreement to act as a recipient of procedural dossiers, then forward it to the guarantee and send its copies to the guarantee-providing agency;

d/ Giving of legal opinions on guarantees and the loan agreement: As proposed by the guarantee-providing agency, within 10 working days the Justice Ministry shall issue its written legal opinions in two (2) originals, of which one shall be sent to the guarantee and another kept by the Justice Ministry.

6. For special projects important to the national economy, which are entitled to guarantees and exempted from examination by the Prime Minister; or commercial loans which are accompanied with non-refundable aids or ODA loans to constitute a funding source in form of syndicated credits (projects already designated according to accompanying funding sources), the order of considering guarantees shall comply with the provisions of Clauses 3, 4 and 5 of this Article.

Article 12.- Contents of letters of Government guarantee

1. A letter of Government guarantee must have the following contents:

a/ The guarantor;

b/ The guaranteed;

c/ Reference to the relevant commercial contracts and the loan agreement;

d/ Proposed guarantee level and loan currency;

e/ The guarantee-providing agency's commitment toward the guarantee to perform the guaranteed's obligations and its own obligations;

f/ Benefits and responsibilities of the guarantee;

g/ Valid duration and time limit for withdrawal of the letter of guarantee;

h/ The governing law and the agency, place for and language to be used in the settlement of disputes when they arise;

i/ Place and date of signing for issuance of the letter of guarantee.

2. Other contents may be agreed upon by the involved parties but must not affect benefits of the guarantee-providing agency and the guaranteed and contravene the provisions of Vietnamese law.

Article 13.- Withdrawal of Government guarantees

Letters of Government guarantee are withdrawn as soon as all guaranteed debt payment obligations are fulfilled.

Chapter V

GUARANTEE CHARGE

Article 14.- Guarantee charge

The guarantee-providing agency shall base itself on results of examination of financial plans of projects to set specific charge rate for each program or project depending on its risk level, which must not exceed 1.5%/year of the guaranteed debit balance. The guarantee charge rates are specified in Appendix III to this Regulation.

Article 15.- Collection of guarantee charge

1. Guarantee charge is calculated in the foreign currency in which the loan agreement has been signed and shall be collected once every six months on the date of payment of the loan interest in that foreign currency or in Vietnam dong at the selling rate announced by the Bank for Foreign Trade of Vietnam at the time of guarantee charge payment.

2. Guarantee charge is paid into the accumulation fund for foreign debt payment under the Finance Ministry's guidance.

3. If the guaranteed delays the payment of guarantee charge, it shall bear the interest on the delayed guarantee charge amount. The applicable interest rate is equal to 150% of the average interest rate applied to six-month deposits by four commercial banks (the Bank for Foreign Trade of Vietnam, the Bank for Investment and Development of Vietnam, the Industrial and Commercial Bank of Vietnam and the Vietnam Bank for Agriculture and Rural Development) and the number of days of delayed payment.

Chapter VI

ASSETS TO BE MORTGAGED FOR GOVERNMENT-GUARANTEED LOANS

Article 16.- Assets to be mortgaged

1. Assets formed with Government-guaranteed foreign loans may be mortgaged to secure the performance of the borrower's obligations toward the guarantee-providing agency in proportion to the ratio of capital forming those assets.

2. It is forbidden to use assets formed with guaranteed capital to ensure the performance of other civil obligations.

3. Mortgaged assets must neither be sold nor exchanged unless it is so agreed by the guarantee-providing agency. In case of sale of mortgaged assets, the proceeds from the sale or assets formed with those proceeds become mortgaged assets in replacement of the sold assets.

4. Registration of mortgage: After the guarantee-providing agency issues a letter of guarantee, the guaranteed shall register the mortgage as security for Government guarantees according to the provisions of law on registration of security transactions.

Article 17.- Handling of mortgaged assets

1. If the guaranteed fails to perform or to fulfil all debt payment obligations and the guarantee-providing agency fulfils all those obligations on the guaranteed's behalf but the guaranteed is incapable of refunding the paid debt amounts to the guarantee-providing agency, the mortgaged assets shall be handled in order to recover debts for the guarantee-providing agency.

2. The modes of handling mortgaged assets shall comply with the provisions of law on security transactions.

Article 18.- Release of mortgage

Mortgaged assets shall be released according to the provisions of law on security transactions.

Chapter VII

REALIZATION OF GOVERNMENT GUARANTEE

Article 19.- For the guarantee-providing agency

When debts come due, if the guaranteed fails to perform or to fulfil all debt payment obligations, the guarantee-providing agency shall pay those debts according to its commitment in the letter of guarantee. The guaranteed shall refund the guarantee-providing agency all debt amounts it has paid on the guaranteed's behalf plus all expenses actually arising in relation to the debt payment.

Article 20.- For the guaranteed

1. The guaranteed has the obligations:

a/ To supply the guarantee-providing agency with the dossier of provision of Government guarantee and relevant necessary documents so that the latter can examine them and propose the Prime Minister to decide on guarantees;

b/ To fulfil the borrower's obligations under the signed loan agreement and the guaranteed's obligations toward the guarantee-providing agency under this Regulation;

c/ To register the mortgaged assets according to the law on registration of security transactions;

d/ To supply the guarantee-providing agency periodically and when necessary with financial statements already audited or certified by a superior state financial management agency; to report on the plan and situation of withdrawal of loan capital, debt payment and debit balance; to report on the program or project execution and special circumstances which may affect the program or project execution and the capability to perform the payment obligations under the loan agreement in strict compliance with the guarantee-providing agency's requests and regulations;

e/ To create conditions for the guarantee-providing agency to inspect the program or project execution when necessary;

f/ To pay guarantee charge on time and in full according to the provisions of this Regulation;

g/ To strictly and fully perform the obligations already committed with the guarantee-providing agency in its written commitment made according to a set form.

2. If the guaranteed fails to perform or to fulfil all debt payment obligations upon debt maturity, it shall notify its incapability to pay debts in writing to the guarantee-providing agency at least 45 days before the debts come due, clearly stating the reasons for its incapability and committing to refund the debt amounts to be paid by the guarantee-providing agency on its behalf plus all expenses actually arising in relation to the debt payment.

3. After getting its debts paid on its behalf, the guaranteed shall sign a compulsory lending agreement under the following specific conditions:

a/ Applicable interest rate: Any interest rate higher than the following two interest rates: (i) interest rate stated in the loan contract; (ii) LIBOR/six months for the loan currency stated in the loan contract plus 2%/year. The interest calculation duration shall be counted from the date the guarantee-providing agency pays the debts on the guaranteed's behalf to the date the guarantee-providing agency recovers those amounts.

b/ Compulsory lending term: The compulsory lending term shall be considered depending on each project's debt payment capability but must not exceed five years.

c/ The compulsory loan source comes from the accumulation fund for payment of foreign debts.

4. Apart from the mortgaged assets specified in Article 16 of this Regulation, the guaranteed that breaks its commitments stated in the compulsory lending agreement twice shall open a special account and transfer all its revenues into that account to secure that priority is given to the payment of Government-guaranteed foreign debts. The balance on the special account is at least equal to 100% of the payable amount of the subsequent debt payment period and must be maintained for a full year. Past that time limit, if the guaranteed strictly fulfils its commitments, the application of that account shall be cancelled.

Article 21.- Assignment or transfer of guaranteed obligations

Assignments or transfers related to Government guarantees must be approved by the guarantee-providing agency. The assignee or transferee has obligations toward the guarantee-providing agency in proportion to the scope of the assignment or transfer from the guaranteed.

Chapter VIII

REPORTING REGIME, INSPECTION AND SUPERVISION

Article 22.- Reporting regime

The guaranteed shall make the following reports in strict compliance with the Government's Decree No. 134/2005/ND-CP of November 1, 2005, promulgating the Regulation on management of foreign borrowing and foreign debt payment:

1. Report on capital withdrawal (indicating the date and value of each capital withdrawal) within the guaranteed loan.

2. Report on progress of capital withdrawal and quarterly debt payment for the guaranteed loan, made according to a set form (not printed herein).

3. Report on quarterly debt payment for the guaranteed loan.

4. Annual report on execution of the project.

5. Report on assessment of the project upon its completion.

Article 23.- Inspection and supervision

1. The guarantee-providing agency shall regularly supervise the performance of the guaranteed's obligations;

2. If the guaranteed fails to pay debts according to Article 20 of this Regulation, the guarantee-providing agency shall inspect the financial status of the project, identify reasons for its insolvency and report remedies to the Prime Minister.

Chapter IX

HANDLING OF VIOLATIONS

Article 24.- Organizations and individuals that violate the provisions of this Regulation shall, depending on the nature and severity of their violations, be administratively handled or examined for penal liability, and pay damages according to current regulations.